by Cyrus D. Mehta, ABIL Lawyer and Gary EndelmanThe Insightful Immigration BlogThe Congressional Republicans finally issued a brief document outlining its principles on immigration on January 30, 2014. As anticipated, and unlike the Senate bill S. 744, the GOP proposes a path to legal status with no special pathway to citizenship. The document states:

There will be no special path to citizenship for individuals who broke our nation’s laws that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the US, but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits). Criminal aliens, gang members, and sex offenders and those who do not meet the above requirements will not be eligible for this program. Finally, none of this can happen before specific enforcement triggers have been implemented to fulfill our promise to the American people that from here on, our immigration laws will indeed be enforced.

Even if there is no special path to citizenship, the GOP document does not state that such legalized individuals cannot seek permanent residence and citizenship through normal channels within the existing, and most likely a reformed immigration system. While it would be really beneficial for the integration of the nation to have a special pathway to citizenship, like the Senate bill after individuals are put in a provisional status for 10 years and 3 more years as a permanent resident, such a proposal would still be welcomed by those who are out of status or have removal orders, with no other forms of relief to remain in the US. They will be able to live and work freely, and even potentially travel outside the US. For those who presently lack such basic freedoms, who among them would not readily embrace their new life even if it is not all we or they would have hoped for? If the existing immigration system is reformed to include more pathways to legal residence, then such individuals can still hope to become US citizens. Indeed, they could also potentially become citizens more quickly than the 13 year special path to citizenship under the Senate immigration bill.Thus, as explained in our prior blog, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary. The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Many may have adult citizen children or spouses who can petition for their lawful permanent resident status. Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long under the existing system. Then, there are also few avenues for obtaining a green card. If the GOP cannot provide a direct pathway to citizenship, let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much! Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.Whether to have a special pathway is not the only sticking point. The GOP document adamantly refuses to go to conference on the Senate’s immigration bill. Still, the other goals in the GOP principles have much in common with the Senate bill. Border security and interior enforcement must come first, there must be a fully functioning entry-exit visa tracking system, and like the Senate bill, a firm insistence on abandoning the paper-based work eligibility verification system with an electronic version. Such common goals can potentially still result in a compromise between the Senate and the House, even if the GOP document presently states that it will not go into conference on the Senate bill.Of course, the GOP appears to display a complete dislike for President Obama’s prosecutorial discretion policies – and there will also most likely be a legislative proposal stemming from it that would prevent the President from stopping immigration enforcement. On the other hand, prosecutorial discretion has always existed in law enforcement from time immemorial, and it will be impractical to prevent the Executive from exercising this prerogative. It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system for all these years, any administration, devoid of ideology, would have exercised discretion to remedy the imbalance. People on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 10 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it was wiser for this Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. This happened with the Deferred Action for Childhood Arrivals (DACA) program. The young individuals who have been able to legalize their status have gone onto completing college, getting jobs and benefiting the country. The GOP document recognizes that it is time to allow children who were brought into country for no fault of their own, and who have no status, to obtain both legal residence and citizenship. DACA is a clear example of how bold administrative action by the Executive, based on prosecutorial discretion, can build consensus around a righteous principle that can ultimately be enacted into law. If the immigration system becomes more viable after reform, there will be less of a need for prosecutorial discretion. Still, there may be some cases that would deserve the exercise of discretion, and this should never be taken away from a President, whether Democratic or Republican, through legislation.Finally, the GOP document recognizes the need to attract foreign nationals who pursue degrees in American colleges to remain in the US, so that they can use their expertise in US industries that will spur economic growth and create jobs for Americans. “When visas aren’t available, we end up exporting this labor and ingenuity to other countries,” the document states. No one can dispute this. The GOP document, also takes into account the need for future flows of temporary workers to come into the US legally in order to sustain the needs of the agricultural industry, among others.

According to statistics provided to CNN by the Centers for Disease Control, among professionals in the United States lawyers rank fourth in suicides (exceeded in misery only by dentists, pharmacists and physicians). Lawyers are also nearly four times more likely to suffer from depression than non-lawyers. Clearly, practicing law is never a 9-to-5 job. Being a lawyer is a high-stress, plummeting-prestige profession—the work is demanding, the economics of the profession are increasingly challenging, and in the views of some, the psychic or status rewards of working as a lawyer rank below nail technician. Far be it from us to suggest that immigration lawyers are immune to the effects of such stress. But among the countless lawyers we know in dozens of different specialties, we think it is fair to say that the immigration lawyers are the happiest. Why? The stress in most lawyers’ lives is caused primarily, we believe, by a few key factors. First, the American legal system is deliberately adversarial. Our adversarial system of law is meant to be fairer than the inquisitorial approach used in many civil law countries by allowing each side in a dispute to zealously defend its position before an impartial arbiter (judge or jury). But the pressures of such a system can take a toll on the advocates—the lawyers—who work within it. In fact, lawyers have been compared to soldiers in this regard: “Both lead physically tough lifestyles: long hours, separated from family life and both are sent to fight other people’s conflicts, no questions asked.” The qualities that can make for a good lawyer—intelligence, diligence, perfectionism, competitiveness, being hard-working and achievement-oriented—can also create the isolation, panic and anxiety that often lead to depression. Second, contrary to how the life of a lawyer is depicted on television or in themovies, much of what lawyers actually do on a day-to-day basis can be mind-numbingly boring. Think document review, drafting boilerplate contracts, performing endless legal research, completing innumerable government forms (especially in fields like tax and immigration), and preparing for trial or finishing a brief late into too many nights. Not really anyone’s idea of fun. Of more immediate concern to members of the legal profession nowadays are the financial pressures presented by a changing economy, and the fear that lawyers will be replaced by non-lawyers and by the increasing use of technology. In tough economic times, corporate and individual clients alike are seeking more for less—more and speedier legal services for less money. A related pressure flows from what Professor Richard Susskind argues in his book, Tomorrow's Lawyers: An Introduction to Your Future, is the inevitable liberalization of legal services, whereby non-lawyers are permitted to provide services traditionally considered to constitute the practice of law. This is already the case in many other countries, and in the United States is institutionalized in immigration law practice, where certain non-lawyers accredited by the federal Board of Immigration Appeals are allowed to represent immigrants in removal proceedings or in administrative matters before the Department of Homeland Security. As discussed at length in a recent article in The Economist, whereas automation in the world’s advanced economies in the 20th century served mostly to replace workers with machines in the manufacturing sector, technology in the 21st century is automating “brain-work,” including some of the work typically performed by white-collar professionals such as accountants and lawyers. This type of disruptive economic growth will inevitably have a significant impact on the practice of law. Indeed, Susskind’s more sobering prediction is that the future of law will be “a world of virtual courts, Internet-based global legal businesses, online document production, commoditized service, legal process outsourcing, and web-based simulated practice.” That’s enough to drive any lawyer to drink. So why do we think immigration lawyers are different? Notwithstanding the innovative use of technology to simplify and automate many of the more mundane aspects of law practice, including gathering information, tracking deadlines and completing forms (of which our firms, Fragomen and Seyfarth Shaw, are leading examples in the world of immigration law), immigration practice fundamentally revolves around people. Whether you’re helping a Fortune 500 company manage its global mobility program, defending an individual against removal (deportation) in Immigration Court, or helping a U.S. citizen’s foreign spouse apply for permanent residence, as an immigration lawyer you are ultimately assisting people through a major personal transition that will profoundly transform their lives and the lives of their families. Economic pressures and technological development are moving us inevitably toward a more data-driven, data-input system of immigration benefits procurement, and the trend toward reliance on technology carries with it the threat of dehumanizing both the practice of law as a profession and the truly intimate odyssey for the immigrants we represent. But while the CDC has not provided statistics about the mental health of immigration lawyers in particular, it is clear to us that immigration lawyers labor in the finest tradition of law as a “helping profession.” This ability to help others, without a true adversary such as a litigation opponent staying up all night devising ways to destroy opposing counsel—not just a government lawyer with an impossible case load who often has too little time for assertive advocacy—distinguishes immigration lawyers from the suicide-prone attorneys described in the CNN article. To be sure, we’ve seen immigration lawyers react poorly to the stress of the practice, especially those of the people-pleaser sort who have a hard time communicating bad news to clients, and just want always to say yes. But they are by far a speck in the immigration-lawyer universe. As immigration lawyers, we have expertise in a complicated area of law that we apply in the service of our clients. For those of us who work in the private sector, we have skills that are also uniquely valuable to an underserved population of indigent immigrants for whom there is a severe shortage of qualified non-profit and pro bono legal counsel. Attorneys who do not specialize in immigration law also have skills that are easily transferable to representing immigrants facing deportation or applying for asylum or seeking various types of lawful immigration status. In one of Careen’s first pro bono cases as a young lawyer—an asylum matter in Immigration Court—the case concluded with Respondent’s counsel, the client and the judge choking back tears. Angelo’s pro bono cases have also included life-changing experiences, for Angelo and his clients, as he has blogged, here, here and here. So, feeling stressed out or depressed? Take a sip of the helping-profession elixir that brought many of us into law in the first place, and take on a pro bono immigration case. Whether you are already an immigration lawyer, or a lawyer in another specialty looking for meaning amid the stress and frustrations of law practice, we promise you that in addition to helping a person in need and fulfilling the highest ethical calling of the legal profession, the experience will leave you feeling fulfilled beyond all expectations. And it is far superior to talk therapy and antidepressants.

[Bloggers note: Today's post comes from the vivid imagination and prolific keyboard of frequent guest blogger and immigration-compliance maven Nicole "Nici" Kersey who shares her introspectively humorous musings at almost a TMI level while informing us of anxiety-inducing Form I-9 issues that stress her (and likely most employers) out. By the way, the photo image is not of Nici but of someone equally perplexed by gnawing I-9 questions]

Egads! I-9 Questions that Keep Me Up at NightBy Nicole Kersey

After every social interaction in which I am a participant, I rehash the event to determine how many idiotic and/or offensive things I did and/or said. This rule applies to parties, meals, and even simple 10-second greetings as I pass someone in the hall. I can spend days worrying about something I did, didn’t do, said, or didn’t say, prompting me to send an e-mail or text a week later to apologize to the person I thought I offended, only to find that the person has no idea what I’m talking about. This makes matters worse, as I have to explain what I did, didn’t do, said, or didn’t say and why the thing I did, didn’t do, said, or didn’t say might have been offensive (and why it was, instead, hilarious). I really hate having to tell people that I am funny. I’ve always been an anxious person. As thoughts fly through my mind, I’ll catch a glimpse of one, and it will worry me, but by the time I realize I’m worried, I can’t remember what it was that caused the worry. I have to press rewind on my brain to catch the thought, worry about it, and release it. Every so often, I catch myself feeling worry-free. When this happens, it causes me to panic, as I am certain that I’ve forgotten to worry about something. (And I usually have.) When you are friends with Angelo on Facebook, you see a number of memes from “Meditating Lawyers.” A recent one caught my attention. It read

If you don’t try to stop whatever is going on in your mind, but merely observe it, eventually you’ll begin to feel a tremendous sense of relaxation, a vast sense of openness within your mind – which is in fact your natural mind, the naturally unperturbed background against which various thoughts come and go.

Mingyur Rinpoche

So I’m making an effort to observe and accept my constant anxiety. I recently had an opportunity to observe my own anxiety as Christmas card season came and went, and I didn’t send a single card. Right after I got married, I was feeling all grown up and sent Christmas cards to everyone I could think of. We still had our invitation list from the wedding, and all of the addresses were at our fingertips. I did not enjoy sending the cards, and being somewhat self-aware decided then and there to never do it again. For someone who is already anxious, Christmas card season is hell. First you have to pick the card. If it’s funny or says Christmas on it, someone might be offended. If you’re going to send a photo card, you have to plan in advance and choose the right photo. If you’re sending a newsletter, you have to make sure not to offend anyone by leaving out some event in which he was involved. You have to write funny and meaningful stuff. Find everyone’s address. Make sure not to omit anyone. You don’t want your cousin to bring the card up at the next family gathering (because of course it would be conversation-worthy) when a distant uncle sitting at the same table didn’t receive one. But the stress of sending cards is replaced by the worry that I may offend people who send me cards by not sending one back. We move a lot, so people sending cards send me a pre-card message asking for our new address, giving me an opportunity to feel guilty even before receiving the card. And what to do about those cards that others send to us? Send a thank you/apology note back explaining why we don’t send cards? Keep them forever? I don’t feel like I can toss a friend’s family photo in the garbage. So we have a huge box in our attic containing every Christmas card, wedding invite, birthday card, etc. that we’ve ever received. If I’m ever on the Supreme Court, maybe these will be useful for whoever is in charge of curating the “Nici museum,” but otherwise I’m just starting down the path of becoming a hoarder. The number one reason that I don’t do holiday cards is that I don’t want to set a precedent. Once you’ve sent a mind-blowingly awesome card, you have to follow through next year with one that blows even more. Last year I made the mistake of writing a holiday-themed blog post for Angelo. And this year I did not do one. Ever since the twelfth day of Christmas, I’ve been anxious about this. Did my reader(s) (are there more than one?) notice that I didn’t do one? Are they mad at me? Offended? Do they think that Angelo didn’t like what I wrote and chose not to post it? To make myself feel better, I’m providing a belated Christmas gift to Angelo and to you. Here are my top ten simple and easy ways to avoid fines for I-9 errors. These issues are common, contribute to my self-diagnosed GAD (Generalized Anxiety Disorder), and once aware of them, employers can easily (and cheaply) avoid them.Top Ten Questions that Make Me Anxious (or Top Ten Easily Avoidable I-9 Errors)

What's an I-9? Many employers don’t know what an I-9 is. If you are one of them, find out. Now. And start completing them. You are required by law to have an I-9 on file for every current employee in the U.S. who was hired after November 6, 1986. You are also required to have I-9s on file for certain former employees, but if you’re hearing the term “I-9” for the first time, you can’t solve that issue. Focus on the current employees, then call an attorney to schedule training.

Don't I only have to do I-9s for foreigners? Uh, no. You have to do an I-9 for every new hire (see page 3 of theHandbook for Employers) who works in the U.S. It doesn’t matter whether the person is a U.S. citizen, a green card holder, a foreign student, your best friend, or your grandmother.

I track expiration dates carefully and reverify every time any I-9 document expires. So I’m doing great, right? No. Make sure that you are only reverifying when you are required to do so. You should never reverify an expiring driver’s license or green card (so long as the document was unexpired at the time the I-9 was completed). You will usually only reverify when an individual’s employment authorization is set to expire or when he presented a receipt at the time of hire. Call me or Angelo so that we can schedule training. Getting this wrong can lead to an invasive, time-consuming, and potentially expensive audit by the Department of Justice.

What’s reverification? Yikes. If you hire someone who has temporary work authorization (for example, someone who has an Employment Authorization card or who is working on an H-1B visa) you have to update the I-9 when the employee’s work authorization is set to expire. (See page 12 of theHandbook for Employers.) The I-9 must always evidence continuing eligibility to work in the U.S. Again, call to schedule training. Not reverifying could lead not only to fines but, in a worst-case scenario, to prison.

It doesn’t matter if I’m a couple of days late, right? Yeah, it does. Not completing the I-9 on time is one of the most common mistakes employers make. Tardiness is a substantive error, meaning that it can (and often will) lead to fines in the event of an inspection. It’s an easy one for inspectors to identify, and immigration judges agree that tardiness is a reason to impose fines. (See page 5 of the decision.) Remember that the employee has to complete and sign Section 1 on or before the first day of work for pay and that you have to review original documents and complete and sign Section 2 by the end of the third business day after the first day of work for pay.

I’m looking at my I-9s, and they look great. The only problem is that a lot of employees didn’t check a box in Section 1 to indicate their status. But they all presented U.S. passports and green cards, so their status is obvious, right? Yes, their status seems obvious. But that doesn’t mean that this is perceived as an “innocent” error by the government. If an employee does not check one of the status boxes in Section 1, the employee’s attestation in Section 1 is deemed nearly meaningless by the government (and immigration judges have tended to side with the government on this). And just to be clear, while the employee is the one who made the mistake, the employer is held responsible for making sure the employee completes Section 1 properly, so it is the employer, not the employee, who will be fined. See page 15 of this decision.

I copied and kept copies of the documents my employees presented for I-9 purposes, so I have proof on file that they are authorized to work. I don’t have to put all of the document information on the form, do I? While it may seem silly, yes, you do have to transcribe the document information onto the form. Make sure that all of the fields are properly completed and that you have signed and dated Section 2 of the form. Again, you can be fined for failing to do this. Take a minute and do it. See page 9 of this decision.

There’s no way I’ve hired unauthorized workers. I make everyone present extra documentation, so I’m absolutely sure that everyone is authorized to work. How could I possibly be in trouble? You could be in trouble for so-called “overdocumentation,” which is a form of discrimination. Fines for this are equal to those for not having reviewed any documentation at all. Make sure that you only require (and only accept) one document from List A or a combination of one List B and one List C document.

Social Security cards are easy, right? List C document. Bam. I’m done. Not so fast. Social Security cards have become increasingly confusing. Remember the following:

Don’t accept a “restricted” card as a List C document. If the card says “Not Valid for Employment” or “Valid for Work Only with DHS (or INS) Authorization,” you cannot accept it for List C. It is probably a valid card, but you need to ask the employee to provide some other List A or C document instead. See page 44 of the Handbook for Employers.

Don’t accept a metal or plastic Social Security card. These have never been issued by the government. Note that these may just be recreations that employees had made so that they would be sturdy and could be carried in a wallet. Tell the employee that he/she needs to present the original card or another List A or C document instead.

Know that a print out verifying someone’s name and SSN is not a receipt for replacement of a lost, stolen, or damaged card. See page 43 of the Handbook for Employers

Merry Belated Christmas. I hope these tips are helpful. And thank you for allowing me to move on and worry about something else. To my friends and family: watch out. You may be getting Christmas cards from me in July. P.S. For those of you who are accustomed to a Cookie Monster reference, here’s a really awesome spoof on Catching Fire. Wouldn’t want to disappoint.

by Cyrus D. Mehta, ABIL Lawyer andGary EndelmanThe Insightful Immigration BlogIn the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit, Louisiana Forestry Ass’n v. Secretary of Labor, No. 12-4030, the DOL wrote a letter stating that the Board of Alien Labor Certification Appeals’ decision in Island Holdings LLC, 2013-PWD-00002 (BALCA 3, 2012) did not represent the legal position of the Secretary of Labor. The DOL had issued increased prevailing wage determinations to an employer after it changed its wage methodology through an Interim Final rule that took effect on April 24, 2013. The order to increase wages was issued after the DOL had already certified the labor certification for the H-2B workers at a lower wage. BALCA in Island Holdings invalidated the wage increases on the ground that there was no specific statutory or regulatory authority that would authorize DOL to increase the wage rate at an unknown future date.The DOL’s letter to the Third Circuit disregarding the BALCA ruling in Island Holdings would have enormous implications on labor certification practice and administrative law We credit Wendel Hall of C.J. Lake, counsel in the Island Holdings case, for alerting us to the significance of this issueand alsobringing it to the attention of DOL itself. If BALCA does not speak for DOL, is it necessary to exhaust administrative remedies before challenging PERM denial in federal court? If BALCA does not speak for DOL, should the Courts pay Chevron style deference to BALCA decision? Can DOL ignore other BALCA decisions on PERM since BALCA does not speak for Secretary of Labor?The Supreme Court established a two-step analysis inChevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) for evaluating whether an agency’s interpretation of a statute it is entrusted is lawful. Under Step One, the court must determine whether Congress has clearly spoken to the precise question at issue in the plain terms of the statute. If that is the case, there is no need for the reviewing court to delve any further. Under Step Two, if the statute is silent or ambiguous, the reviewing court must determine whether the agency’s interpretation is based on a permissible construction of the statute. A permissible interpretation of the statute need not be the best interpretation or even the interpretation that the reviewing court would adopt. Step Two is commonly known as Chevron deference where the reviewing court grants deference to the agency’s permissible interpretation of an ambiguous statute.Still, Chevron deference cannot be accorded unless there is an agency construction of a statute to which the federal court must defer. DOL has now told the 3rd Circuit that BALCA does not speak for the Secretary of Labor since the administrative law judges on BALCA are only subordinate DOL employees. Therefore, an interpretation by BALCA does not represent the official view or understanding of the DOL. For this reason, one may never reach the question of deference since there is no agency finding or interpretation capable of commanding it. InUnited States v. Mead, 533 U.S. 218 (9th Cir. 2001), the Supreme Court held that not all agency interpretations qualify for Chevron deference, and deference is only accorded “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Using the Mead language or rationale, one can conclude that, since DOL has now decided that BALCA does not speak for the DOL, Congress has not delegated any interpretive authority to BALCA. Hence, no deference can or should be paid to any BALCA ruling. Such a ruling would appear not to be entitled to deference.Even under the lower standard inSkidmore v. Swift & Co, 323 U.S. 134 (1944) the weight accorded to an administrative interpretation or judgment “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facts which give it power to persuade, if lacking power to control.” If DOL does not think that BALCA speaks for the Secretary of Labor, using the Skidmore criteria, how can BALCA ever have the power to persuade? Not having that, any BALCA decision would not be invested with any deference under Skidmore.Finally, inAuer v. Robins, 519 US 452 (1977), the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations. However, even under the Auer concept of deference, which gives federal agencies the right to interpret their own regulations, there would be no deference to a BALCA decision since the DOL has now told the Third Circuit that an opinion by BALCA is not an interpretation by the DOL but only an expression of what individual subordinate DOL employees think.Since DOL does not think BALCA speaks for the Secretary of Labor, is there a need to exhaust administrative remedies before challenging a PERM labor certification denial in federal court? Moreover, if no deference to a BALCA decision is justified or required, can there be a failure to exhaust? We doubt it. If DOL does not think that BALCA speaks for the agency, how can an appeal to BALCA be mandatory despite 20 CFR 656.24(d)(e)(3) that advises an employer a failure to appeal to BALCA within 30 days constitutes a failure to exhaust. How can going to BALCA be a mandatory administrative remedy when BALCA speaks only for itself and not the DOL? There is a conflict between this regulation and the DOL view in the 3rd Circuit Louisiana Forestry case. This regulation is key since, for Administrative Procedure Act purposes, only if exhaustion is required by an agency regulation can recourse to the federal courts be barred.Darby v. Cisneros, 509 US 137, 144-54 (1993).The four criteria set forth in Darby v. Cisneros in order to bypass an administrative appeal, are as follows:

Federal review has been brought pursuant to the APA;

There is no statute that mandates an administrative appeal;

Either: a) there is no regulation that mandates an administrative appeal; or b) if there is a regulation that mandates an administrative appeal, it also does not stay the agency decision pending administrative appeal; and

The adverse agency decision to be challenged is final for purposes of the APA.

BALCA cannot provide an administrative remedy to the parties concerned since its decisions to not represent the official view of the DOL. Rather than constituting “superior agency authority” to use the language of Section 10 (c ) of the APA, 5 USC 704, BALCA consists of a collection of subordinate DOL employees in the view of the DOL itself. Since that is the case, BALCA “lacks the ability or competence to resolve the issue or grant the relief requested…” Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002).None of thevarious reasons most regularly advanced for the exhaustion doctrineapply here given the DOL repudiation of BALCA as the final expression of the DOL. The need to first appeal to BALCA does not promote administrative efficiency since it can be ignored by the DOL as the individual perspectives of subordinate employees. For the same reason, it will not avoid needless litigation or promote the conservation of judicial resources. When DOL agrees with BALCA, it accepts what BALCA says. When DOL disagrees, it can tell the court, as here, that BALCA does not speak for the DOL. This is how and why the lack of deference is linked to the absence of any need to exhaust remedies.Aggrieved employers and aliens may wish to directly seek review in federal court than seek review at BALCA after the DOL’s letter to the Third Circuit. Strategically, going directly into federal court may be advantageous if the plaintiff wished to challenge a regulation on constitutional grounds rather than waste time with BALCA, which may not have jurisdiction over such a challenge. Moreover, if the employer desires to file a new PERM application, and still seek review of the old denial, going to BALCA would preclude the filing of a new application until there was a final adverse decision. 20 CFR § 565.24(e)(6). The same prohibition does not apply if the aggrieved employer directly goes into federal court.

Finally, 20 CFR 656.26 does not require an alien to go to BALCA; indeed, the alien has no such right. In the labor certification context, the alien is not even informed of a right to appeal in contrast to the notification of such right provided to an alien investor, 8 CFR 204.6(k), or fiancé(e) , 8 CFR 123.2 (k)(4). Then, under Darby, an alien ought to be able to get APA standing even if the employer does not seek review of the denial with BALCA, which in any event has been downgraded by the DOL. The Sixth Circuit in Patel v. USCIS very recently held that an alien had standing to seek review of the denial of an I-140 petition as the alien’s interests is within the zone of interests protected by INA section 203(b)(3). See alsoStenographer Machines v. Regional Administrator for Employment and Training, 577 F.2d 521 (7th Cir. 1978); Cf Ramirez v. Reich, 156 F.3d 1273 (DC Cir. 1998) (although alien has standing to sue on a denied . labor certification, government’s motion to dismiss granted due to absence of employer’s participation in the litigation). Given that the DOL has rendered BALCA irrelevant in its letter to the Third Circuit, aliens ought to be able to bolster their argument about seeking review of a denied PERM labor certification in federal court.The DOL repudiation of BALCA as an authoritative voice calls into question the relevancy of BALCA itself. If BALCA does not speak for the DOL to a federal judge, how can it do so in any other context? Can BALCA represent the DOL in an administrative law sense only? Is it possible for BALCA to be invested with a sense of finality only with respect to decisions on labor certification, both temporary and permanent, but to lose such imprimatur should the DOL go into court? To answer these questions, we would do well to cast our minds back to the reason that DOL created BALCA in the first place. At that time, the DOL’s administrative decisions were neither consistent nor uniform. So the DOL revised the regulations to create a Board of Alien Labor Certification Appeals (BALCA) in 1987 to replace the system of appeals to single administrative law judges within the DOL. The rule creating the BALCA said, “[T]he Board will enhance uniformity and consistency of decisions.” 52 Fed. Reg. 11218 (Apr. 8, 1987). A subsequent BALCA decision explained: “The purpose of the Board is to provide stare decisis for the immigration bar.” Matter of Artdesign Inc., 89–INA–99 (Dec. 5, 1989). Subsequently, however, these goals were not achieved, and the BALCA invented a device (the en banc decision) to resolve inconsistencies in BALCA decisions. The BALCA suffers from a strange defect: unlike the DHS and the BIA where regulations exist that make BIA decisions binding on all officers and employees of the Service and Immigration Judges, BALCA decisions cannot command unquestioning obedience from the federal agency it claims to represent. Yet, until today, both the regulators and the regulated assumed that BALCA spoke not merely or even primarily for the administrative law judges themselves but for the Department of Labor. Now, we are not so sure.(Guest writer Gary Endelman is the Senior Counsel at FosterQuan)

by David Isaacson, Associate with ABIL member, Cyrus D. MehtaThe Insightful Immigration BlogUnder the Immigration and Nationality Act (“INA”), there are three ways that adopted children can qualify as the children of a U.S. citizen parent for purposes of acquiring lawful permanent resident status, and generally derivative U.S. citizen status, through that adoptive parent. Section 101(b)(1)(E) of the INA, perhaps the most familiar, defines an adopted child as a child for immigration purposes where the child was adopted under the age of 16 (or under the age of 18 and is the sibling of a child adopted by the same parents while under the age of 16), and “has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.” Sections 101(b)(1)(F) and 101(b)(1)(G) of the INA provide different procedures for children sometimes referred to as orphans, depending upon whether the child is from “a foreign state that is a party to the Convention on Protection of Children in Respect of Intercountry Adoptions, done at The Hague on May 29, 1993,” commonly referred to as the Hague Adoption Convention. By regulation, according to 8 C.F.R. §204.2(d)(2)(vii)(D), the regular 101(b)(1)(E) procedures based on two years of legal custody and joint residence may not be used to file an I-130 petition for certain children from countries that have subscribed to the Hague Adoption Convention. In an interim memorandum posted by USCIS on January 3, 2014 (although dated December 23, 2013) and designated PM 602-0095, however, USCIS has indicated that it will somewhat narrow the class of children ineligible for regular 101(b)(1)(E) procedures.

On or after the Convention effective date, as defined in 8 CFR part 204.301, a United States citizen who is habitually resident in the United States, as determined under 8 CFR 204.303, may not file a Form I-130 under this section on behalf of child who was habitually resident in a Convention country, as determined under 8 CFR 204.303, unless the adoption was completed before the Convention effective date. In the case of any adoption occurring on or after the Convention effective date, a Form I-130 may be filed and approved only if the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.

That is, for an adoption completed after the April 2008 effective date of the Hague Adoption Convention, USCIS will not approve an I-130 petition for “a child who was habitually resident in a Convention country” unless “the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.” A list of Convention countries is available on the State Department website.The reader may wonder at this point why the unavailability of an I-130 petition under INA §101(b)(1)(E) would be a problem for a child from a Hague Adoption Convention country, if Hague Adoption Convention procedures under INA §101(b)(1)(G) can be used instead. The answer is that the procedures under INA §101(b)(1)(G) are designed for cases in which the petitioner seeks out a child in a foreign country for the specific purposes of adoption and immigration, and are ill-fitted for many cases in which an adoptive relationship already exists before any thought of immigration benefits has entered anyone’s mind, or in which the child already resides in the United States. For example, one factor ordinarily requiring the denial of a Form I-800 petition under the Hague procedures, according to 8 C.F.R. §204.301(b)(1), is that “the petitioner completed the adoption of the child, or acquired legal custody of the child for purposes of emigration and adoption, before the provisional approval of the Form I-800,” unless “a competent authority in the country of the child’s habitual residence voids, vacates, annuls, or terminates the adoption or grant of custody and then, after the provisional approval of the Form I-800 . . . permits a new grant of adoption or custody.” Many adoptive parents are understandably horrified at the thought of giving up custody of an adopted child with whom they have had a parental relationship for some time, in order to allow the Hague Adoption Convention procedures to play out. Also, unless the child was already related to the adoptive parent in one of several ways listed in the regulations at 8 C.F.R. §204.301(b)(2)(iii), any contact with the child’s biological parents before the Hague process begins can be grounds for denial of the I-800 petition under 8 C.F.R. §204.301(b). Even if these pitfalls are avoided, Form I-800 cannot be approved for a child who is in the United States “unless the petitioner, after compliance with the [regulatory] requirements . . . either adopt(s) the child in the Convention country, or else, after having obtained custody of the child under the law of the Convention country for purposes of emigration and adoption, adopt(s) the child in the United States.” 8 C.F.R. 204.309(b)(4). Thus, where there is a pre-existing adoptive relationship or other obstacles to the Hague Adoption Convention process would apply, U.S. citizen adoptive parents may be anxious to escape the bar of 8 C.F.R. §204.2(d)(2)(vii)(D) and obtain approval of an ordinary I-130 petition based on two years of legal custody and residence with the child under INA §101(b)(1)(E).The regulations make clear one way in which a U.S. citizen petitioner can escape from the bar of 8 C.F.R. §204.2(d)(2)(vii)(D), by demonstrating that the U.S. citizen petitioner is not habitually resident in the United States. According to 8 C.F.R. §204.2(d)(2)(vii)(E), “[f]or purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will deem a United States citizen . . . to have been habitually resident outside the United States, if the citizen satisfies the 2-year joint residence and custody requirements by residing with the child outside the United States.” That is, so long as the two-year joint residence and physical custody requirements are fulfilled by the petitioner residing with the adopted child outside the United States, an ordinary I-130 petition may be approved under INA §101(b)(1)(E). USCIS has also clarified, in a Memorandum dated October 31, 2008, and incorporated in relevant part into Chapter 21.4(d)(5)(F) of the USCIS Adjudicator’s Field Manual, that the 8 C.F.R. §204.2(d)(2)(vii)(E) exception is “not the only situation in which the adoptive parent may claim not to have been habitually resident in the United States at the time of the adoption.” Rather, “[t]here may be other situations in which the adoptive parent can establish th[at] he or she was not domiciled in the United States, and did not intend to bring the child to the United States as an immediate consequence of the adoption.” In such other cases of a non-habitually-resident petitioner, as well, USCIS has recognized that “the Hague Adoption Convention process would not apply.”Where the U.S. citizen petitioner is admittedly a habitual resident of the United States, but it appears that the adopted child may be a habitual resident of the United States as well (in which case the Hague Adoption Convention procedures again should not apply), things get more complicated. At least part of the regulations err on the side of presuming that a child who has come to the United States from a Hague Adoption Convention country is still a habitual resident of that country, so that an I-130 petition for that child by a U.S. citizen parent habitually resident in the United States will not be allowed. Title 8, section 204.2(d)(2)(vii)(F) of the Code of Federal Regulations provides:

For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will not approve a Form I-130 under section 101(b)(1)(E) of the Act on behalf of an alien child who is present in the United States based on an adoption that is entered on or after the Convention effective date, but whose habitual residence immediately before the child's arrival in the United States was in a Convention country. However, the U.S. citizen seeking the child's adoption may file a Form I-800A and Form I-800 under 8 CFR part 204 , subpart C.

Read in isolation, this might suggest that a child who resided in a Hague Adoption Convention country before coming to the United States could never be the beneficiary of an I-130 petition by a U.S. citizen adoptive parent habitually resident in the United States. Another portion of the regulations, however, provides for a determination regarding the child’s habitual residence:

If the child’s actual residence is outside the country of the child's citizenship, the child will be deemed habitually resident in that other country, rather than in the country of citizenship, if the Central Authority (or another competent authority of the country in which the child has his or her actual residence) has determined that the child's status in that country is sufficiently stable for that country properly to exercise jurisdiction over the child's adoption or custody. This determination must be made by the Central Authority itself, or by another competent authority of the country of the child's habitual residence, but may not be made by a nongovernmental individual or entity authorized by delegation to perform Central Authority functions. The child will not be considered to be habitually resident in any country to which the child travels temporarily, or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States.

8 C.F.R. §204.303(b). The “Central Authority”, as the term is used here, refers to an entity designated under the Hague Adoption Convention by a Convention country to perform functions under the Convention, as explained in the definitional provisions at 8 C.F.R. §204.301.In its October 31, 2008 Memorandum, USCIS recognized that under certain circumstances, a child resident in the United States should be exempt from the seeming bar of 8 C.F.R. §204.2(d)(2)(vii)(F) to approval of an I-130 petition under INA §101(b)(1)(E), where the Central Authority of the child’s country had determined that the child was no longer a habitual resident of that country. As the October 31, 2008 Memorandum explained:

There may be situations, however, in which the parent is not able to complete a Hague Adoption Convention adoption, because the Central Authority of the child’s country has determined that, from its perspective, the Hague Adoption Convention no longer applies to the child. The purpose of 8 CFR 204.2(d)(2)(vii)(F) is to prevent the circumvention of the Hague Adoption Convention process. Thus, USCIS has determined that 8 CFR 204.2(d)(2)(vii)(F) must be read in light of the Hague Adoption Convention regulations in subpart C of 8 CFR part 204. If, under subpart C, there is a sufficient basis for saying that the Hague Adoption Convention and the implementing regulations no longer apply to a child who came to the United States from another Hague Adoption Convention country, then USCIS can conclude that 8 CFR 204.2(d)(2)(vii)(F) no longer applies. The governing regulation, 8 CFR 204.303(b), explains when the child is habitually resident in a country other than the country of citizenship. This regulation does not explicitly apply to children in the United States, but USCIS has determined that it can be interpreted to permit a finding that a child who, under 8 CFR 204.2(d)(2)(vii)(F), is presumed to be habitually resident in another Hague Adoption Convention country can be found to be no longer habitually resident [in] that country, but to be habitually resident, now, in the United States. USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) no longer precludes approval of a Form I-130 if the adoption order that is submitted with the Form I-130 expressly states that, the Central Authority of the other Hague Adoption Convention country has filed with the adoption court in the United States a written statement indicating that the Central Authority is aware of the child’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the child is not habitually resident in that country. A copy of the written statement from the Central Authority must also be submitted with the Form I-130 and the adoption order. If the adoption order shows that the Central Authority of the other Hague Adoption Convention country had determined that the child was no longer habitually resident in that other Hague Adoption Convention country, USCIS will accept that determination and, if all the other requirements of section 101(b)(1)(E) are met, the Form I-130 could be approved.

October 31, 2008 Memorandum at 5. As USCIS explained later in PM 602-0095, summarizing prior guidance, a modified version of this process could also be used even if the adoption had already occurred: “In cases where the written statement from the Central Authority in the child’s [country of origin] is not obtained until after the adoption was finalized, petitioners would have to submit an amended order that contains the required language, as well as the written statement.” PM 602-0095 at 2.This process for the recognition by USCIS of a determination by the Central Authority of the child’s country of citizenship that the child was no longer habitually resident there was based on the assumption that the Central Authority in the country where the child has been habitually resident (referred to by USCIS as the “Country of Origin,” or COO for short) would cooperate in issuing a determination. Practitioners and USCIS subsequently discovered, however, that the Central Authorities of some of the Hague Adoption Convention countries in which children had been habitually resident were not willing to cooperate with the process. As USCIS explained:

The guidance did not completely resolve the problem it was intended to resolve. In some instances, the Central Authority in the COO either cannot or will not take a position concerning whether the child is still habitually resident in the COO. Thus, the adoptive parent(s) may be unable to establish either that the Hague Adoption Convention did not apply to the adoption, or that the adoption was completed in accordance with the Hague Adoption Convention process.

PM 602-0095 at 2-3. It was “[i]n light of this development” that USCIS provided additional guidance in PM 602-0095, which has been incorporated into Chapter 21.4(d)(5)(G) of the Adjudicator’s Field Manual.Under PM 602-0095, the previous policy regarding instances in which the Central Authority of the COO has given a determination of lack of habitual residence remains intact.

It remains USCIS policy that USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if the adoption order (or amended order) expressly states that the Central Authority in the COO advised the adopting court that the Central Authority was aware of the child’s presence in the United States, and of the proposed adoption and did not consider the child habitually resident in the COO. The written statement from the Central Authority must accompany the Form I-130 and the adoption order (or amended order).

PM 602-0095 at 3. However, under certain circumstances, USCIS is now willing to proceed along these same lines without an affirmative statement from the Central Authority of the COO:

In cases where the COO has a policy of not issuing statements of habitual residence, or where the petitioners show that they have attempted to obtain the statement of habitual residence from the COO for at least 6 months with no response, and the child was not paroled into the United States, USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if:

At the time the child entered the United States, the purpose of the entry was for reasons other than adoption (intent criteria);

Prior to the U.S. domestic adoption, the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States, (actual residence criteria); and

Any adoption decree issued after February 3, 2014, confirms that the COO Central Authority was notified of the adoption proceeding in a manner satisfactory to the court and that the COO did not object to the proceeding with the court within 120 days after receiving notice or within a longer period of time determined by the court (notice criteria).

PM 602-0095 at 3.Pages 4 through 6 of PM 602-0095 list in detail the required evidence that should be provided in order to establish these criteria to the satisfaction of USCIS, and the other factors that USCIS may consider in regard to these criteria. In regard to the first criterion, intent at time of entry, one particularly significant requirement is that of an “[a]ffidavit from the petitioning adoptive parent(s),” or “APs,” which USCIS indicates should include:

Description of child’s circumstances prior to child’s entry to the United States (i.e., Where did the child live and/or go to school? Who cared for the child? What events led to the child’s travel to the United States? Reason for the child’s travel to the United States?).

List of individuals who have cared for the child since his or her entry into the United States and the relationship to the child.

Description of any contact the adoptive parents had with the child, or any contact with the child’s birth parents, or any adoption or child welfare agency or NGO (in the United States or abroad) related to the child that took place:

(a) before the child came to the United States; or, (b) after the child’s arrival but before a court placed the child with the AP(s).

Sworn statement from AP(s) stating under penalty of perjury that on the date of the child’s entry into the United States the AP(s) did not intend to adopt the child nor intend to circumvent the Hague Adoption Convention procedures.

PM 602-0095 at 4.Other “[e]vidence establishing the timeline and course of events that led to the child’s availability for adoption by the adoptive parents” is also important. USCIS will consider a “court order containing findings related to the child’s purpose for entering the United States, if available”, as well as the results of checks of U.S. government systems regarding entry on a visa or by the Visa Waiver Program. PM 602-0095 at 4. “Evidence that the child was a ward of a U.S. State or State court prior to the adoption” will be considered, and “should establish that the child was a ward of a U.S. State or State court prior to the adoption.” Id. at 4-5. USCIS will also consider as favorable certain factors which would normally be of relevance in a Hague Adoption Convention process, specifically:

Evidence of birth parent’s inability to provide proper care for the child.

Evidence to establish one or both birth parents are deceased.

Evidence to establish any living birth parents freely consented to the proposed adoption OR the birth parents’ parental rights were fully and properly terminated.

Id. at 5. On the other hand, “[a]ny evidence that suggests that the entry was for the purpose of adoption” will be considered as an adverse favor, and “[a] prior adoption in the COO by AP(s) in United States is a heavily weighted adverse factor, but not a bar.” Id.With respect to the Actual Residence criterion, PM 602-0095 presumes that this criterion has been satisfied “if the child was physically present in the United States for two years or more prior to the adoption.” Id. at 5. Otherwise, a variety of evidence will be considered:

Absent such presumption, adjudicators must consider the length of time that the child has spent in the United States prior to the adoption and supporting evidence establishing the child’s actual residence and compelling ties in the United States prior to the adoption. O Depending on the child’s age, documentation from the time period prior to adoption may include:

Evidence of continuous medical care in the United States;

Statement from petitioners explaining the child’s social interactions, including family and peer relationships;

School records;

Registration for extra-curricular activities;

Affidavits from knowledgeable individuals (such as the child’s doctor or teacher, day care provider, landlord, or neighbors) attesting to the child’s actual residence in the United States; and/or

Evidence that the child’s birth parent, guardian, or caretaker resided in the United States.

Id. at 5. “A Court order finding that the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States prior to the adoption” will be considered as well, as will “[e]vidence that the child was a ward of the state or court prior to the adoption.” Id. “Evidence that the child lived outside of the United States shortly before the adoption” will be counted as adverse evidence in the Actual Residence determination.For the third, Notice criterion, what is required is, as one might expect, evidence that the COO Central Authority has been notified of the objection and has declined to object or has not responded for the required period. The “Required Evidence” according to PM 602-0095 for this purpose is:

Evidence of notice to the COO Central Authority of the pending adoption providing the Central Authority 120 days to object. Notification should include the following language:

If you do not intend to object, please notify the court.

If you require additional time beyond 120 days, please notify the court.

Evidence of the COO’s non-objection must be incorporated into the language of the adoption order.

If AP(s) filed the Form I-130 with a court order that lacks the COO non-objection language, USCIS may RFE for an amended order. The petitioner(s) do not need to submit the actual statement from the COO, however USCIS may issue an RFE requesting it if necessary.

PM 602-0095 at 6.The new process set out in PM 602-0095 is a significant improvement on the former situation of adoptive parents potentially facing a bar to petition approval if the COO’s Central Authority chose not to get involved in the case, and for that USCIS should be commended. However, it is not a complete solution, for several reasons. The current version of PM 602-0095 excludes children whom it ought to have helped, and is unavailable to certain adoptive parents who have done nothing wrong and ought to be able to avail themselves of its protections.One notable anomaly in PM 602-0095 is that it applies only where “the child was not paroled into the United States.” The parole exception is presumably designed to avoid the scenario where prospective adoptive parents apply for humanitarian parole for a child with the concealed purpose of adopting that child. If this is the thinking behind the exception, however, then it appears to be seriously overbroad. Consider a scenario where a child may have entered on advance parole in connection with a parent’s application for adjustment of status, for example, years before being orphaned by the death of the primary-applicant parent or abandoned by that parent. If that child, years after entry on advance parole, is adopted by a U.S. citizen, and if the Central Authority in that child’s country of origin will not cooperate with the determination of habitual residence, refusing to allow approval of an I-130 petition for that child serves no apparent policy purpose and appears pointlessly cruel.The requirement that “[a]t the time the child entered the United States, the purpose of the entry was for reasons other than adoption,” PM 602-0095 at 3, also seems overbroad given the lack of an expressed time limitation. Logically, intent to adopt a child at the time of the child’s entry into the United States should not be considered problematic if the child’s country of origin, or the United States, were not signatories to the Hague Convention at the time of the entry. If a child entered the United States before April 1, 2008, for the purpose of adoption, but the adoption was finalized after that time (thus potentially subjecting the child and adoptive parents to the strictures of the Hague Adoption Convention), what purpose is served by denying an I-130 petition filed for such a child who has established compelling ties in the United States, and to whose adoption the COO Central Authority has not objected after being given notice?The requirement of a sworn statement from the adoptive parent or parents “stating under penalty of perjury that on the date of the child’s entry into the United States [they] did not intend to adopt the child,” PM 602-0095 at 4, is also overbroad in another way beyond the underlying substantive criterion: it is in tension with the notion of dual intent which exists elsewhere in immigration law. Earlier in PM 602-0095, as discussed above, the substantive criterion is said to be that “the purpose of the entry was for reasons other than adoption.” Id. at 3. But just as the law recognizes that an H-1B temporary worker may have both a bona fide intent to enter temporarily as a nonimmigrant, and a latent intent to adjust status if possible later on, USCIS should recognize that adults may have the dual intent to provide shelter and temporary guardianship to, for example, an underage F-1 student, while simultaneously having the latent intent to adopt the child later if circumstances develop in such a way that this seems advisable. (The author thanks Cyrus D. Mehta for inspiration regarding the relevance of the dual-intent notion to this context.) To require adoptive parents to forswear previous adoptive intent, rather than stating under penalty of perjury that some other legitimate intent besides adoption existed on the date of the child’s entry into the United States, ignores the possibility of dual intent and is in that sense overbroad.USCIS has offered PM 602-0095 as an interim memo for comment, with the comment period ending on January 17, 2014, and so there may be time to fix these problems. The author of this blog post will likely submit a comment regarding PM 602-0095 in line with the above observations. Readers who agree with these observations may wish to consider doing so as well.

"At the beach when the tide is going out, the waves recede and it seems that nothing is happening in the sea. But the truth is that the great swells are gathering strength beneath the waters, building energy for the time the tide will return."~ Dean Walley, “The Tides of Life”

These words aptly describe what's happening in Washington. The contours of a deal on comprehensive immigration reform (CIR) are taking shape. An underclass will be created of undocumented people who will be given no path to citizenship. Cenk Uygur, host of The Young Turks, drops the veil on the deal with starkly prescient insights:

You know there is a deal when polar opposites, Republican Bob Goodlatte and Democrat Juan Vargas, agree on CIR without a pathway to citizenship. This form of Juan Cuervo immigration is not good for the country and will ultimately sound the death knell for the Republican Party in future elections as Hispanic and Asian voters, incensed by the blatant racism that the no-pathway GOP represents, go ABR (Anybody but Republicans). So for now, Democrats reluctantly shed crocodile tears over CIR-with-no-pathway. But they know what is made in piecemeal fashion today, can be reconstituted through future amendments as a path to citizenship tomorrow.

In order to qualify for naturalization, an applicant must demonstrate that she is or was a person of good moral character (GMC) throughout the relevant statutory period and through the time she takes the oath of allegiance. See Immigration and Nationality Act (INA) § 101(f); Title 8, Code of Federal Regulations (CFR) § 316.10. For the average person, GMC may not be an issue – the average person will have the requisite “character which measures up to the standards of average citizens of the community in which the applicant resides,” USCIS Policy Manual, Volume 12, Part F (hereinafter “PM”), Ch.1A, and will not be statutorily precluded from showing GMC. GMC “does not mean moral excellence . . . .’” Matter of Sanchez-Linn, 20 I&N Dec 362, 366 (BIA 1991). GMC is “is incapable of exact definition,” Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961), and extremely complex. Because the statute and regulations governing the meaning of GMC cover a broad range of conduct and acts, and because officers will be exercising discretion in making a determination, an advocate must carefully review GMC with a client to ensure any potential issues are analyzed and addressed.There are statutory and regulatory bars to GMC, as well as a catchall provision which allows an adjudicator to exercise discretion and find a lack of GMC where none of the other bars apply, and it is important to keep them all in mind. Having an issue that could result in a negative determination of GMC can do more than prevent a person from obtaining U.S. citizenship – it can signal that the individual may be removable and may even be subject to mandatory detention if put in removal or if the person returns to the United States after traveling abroad.USCIS officers must assess GMC on a “case-by-case” basis, 8 CFR § 316.10(a), examining an applicant’s conduct and acts during the relevant statutory period immediately preceding the application – 5 years as a general matter, INA 316(a)(1), 3 years for those who have been residing with their U.S. citizen spouse for that period, INA 319(a), and 1 year for those who have served honorably in the U.S. military, 8 CFR § 329.2(d). However, officers are not limited to the statutory periods, and can go back in time as far as they believe necessary in assessing whether a person has experienced a “reform of character,” or if the officer believes that “the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.” 8 CFR § 316.10(a)(2).An officer must consider “the totality of the circumstances and weigh all factors” when considering reformation of character in conjunction with GMC within the relevant period. PM Ch.2B. The PM provides officers with the following list of factors to consider in assessing an applicant’s current moral character and reformation of character: family ties and background; absence or presence of other criminal history; education; employment history; other law-abiding behavior (meeting financial obligations, paying taxes, etc.); community involvement; credibility of the applicant; compliance with probation; length of time in United States. Id. A GMC determination therefore involves a balancing test and advocates should make a strong showing of equities where any negative factors that do not constitute a bar to establishing GMC are present, to present a strong foundation upon which an adjudicator may be swayed to find in an applicant’s favor.Absolute Bars to Showing GMCAn individual cannot show GMC if he or she has:

Been convicted of murder at any time (8 CFR § 316.10(b)(i));

Engaged in persecution, genocide, torture, or severe violations of religious freedom at any time (INA § 101(f)(9));

Been convicted of an aggravated felony as defined in INA § 101(a)(43) on or after November 29, 1990 (INA § 101(f)(9), 8 CFR § 316.10(b)(ii)).

Note that an individual who was convicted of an aggravated felony before November 29, 1990 and does not otherwise fall into any of the permanent or conditional preclusions to showing good moral character can naturalize. They face an uphill battle and must demonstrate that they have made exemplary efforts to redeem themselves, but it can be done, if not at the USCIS level, then in federal court. For an excellent example of the showing that needs to be made, and how advocates can prepare not only an application but also their client for the application process, see Lawson v. USCIS, 795 F.Supp.2d 283 (SDNY 2011), discussed at length in a previous blog post. Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit, sitting by designation in district court, found that Lawson, a Vietnam War veteran honorably discharged from the Marines, had established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985. Judge Chin found Lawson had paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates” and continued his efforts at reform after he was released. Cases like Lawson demonstrate that in preparing a naturalization application for a client with a criminal history or any other GMC issue, it is important to pull out all the stops and be creative about demonstrating all of the ways in which your client is an asset to the community. Make sure they are able to communicate the many ways in which they participate in and contribute to the various communities with which they may interact.

Conditional Bars for Acts in the Statutory Period

Beyond the absolute bars to establishing GMC, the statute and regulations provide a laundry list of what USCIS refers to as “conditional bars” to establishing GMC, found in INA § 101(f) and 8 CFR 316.10:

One or more crimes involving moral turpitude

Convicted of two or more offenses, aggregate sentence imposed five years or more

Controlled substance violation

Admitting to any of the above

Incarceration for aggregate of 180 days due to a conviction

False testimony

Prostitution or commercialized vice

Smuggling of a person

Polygamy

Gambling

Habitual drunkard

Here are highlights of some of the more complex conditional bars:

Crime Involving Moral Turpitude

Being convicted of a crime involving moral turpitude (CIMT) during the statutory period precludes a finding of GMC. This excludes a conviction for a purely political offense as well as an offense that falls within the petty offense exception in INA § 212(a)(2)(ii)(II) (maximum penalty possible does not exceed one year and the person was sentenced to 6 months or less imprisonment) or the youthful offender exception in INA § 212(a)(2)(ii) (committed crime when under 18, crime committed (and person released from resulting confinement) more than 5 years before application for the benefit).If the client is unclear on whether they have been convicted or what they may have been convicted of, make sure you obtain any and all records relevant to their brush with the criminal justice system. You can have them request a copy of their file from their criminal defense attorney, obtain an FBI rap sheet, have them go to the court where their case was heard and request a record or court disposition. Try to get as much documentation as possible and do not rely solely on the FBI rap sheet because it may be incomplete. Like GMC, CIMT is not defined in the INA or implementing regulations and is incredibly complex. Moral turpitude refers generally to conduct that “shocks the public conscience,” conduct that “is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. . . . Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995). Key to the determination of moral turpitude is “whether the act is accompanied by a vicious motive or a corrupt mind.” Id. Each statute must be examined to determine whether it involves moral turpitude, but some common elements of CIMTs are fraud, theft (intent to permanently deprive the owner of property), crimes involving bodily harm to another with an intent to harm, and even some instances of harm resulting from criminally reckless conduct.The CIMT concept has developed over time through a multitude of court decisions, and the steps one must take in analyzing whether a crime amounts to a CIMT continues to be fought out in the courts. The determination of whether a crime is a CIMT depends on the judge, the wording of the particular statute at issue, and whether the judge applies the “categorical approach” (which requires consideration of the minimal conduct implicated by a penal law) or “modified categorical approach” (where the categorical approach does not yield an answer because a criminal statute includes offenses that fall outside the generic criminal category, this approach allows consideration of the record of conviction for clarification), among other things. Because the topic of CIMTs can fill many volumes, an in-depth analysis of how to identify a CIMT is beyond the scope of this blog post, and the reader is referred to resources such as Mary E. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (5th Ed. 2012)(an AILA publication), that deal in more depth with CIMTs and other issues relating to crimes and immigration.Keep in mind that in addition to precluding a finding of GMC, one CIMT within 5 years of admission where the crime is one for which a sentence of one year or more may be imposed makes a person deportable, see INA § 237(a)(2)(A)(i), as do two or more CIMTs at any time. See INA § 237(a)(2)(A)(ii). An advocate also has to be aware of the impact of a criminal conviction on a lawful permanent resident who wants to travel outside the United States. If a lawful permanent resident with one or more CIMTs on her record travels outside the United States, upon return she may be considered an applicant for admission under INA § 101(a)(13), and may be subject to mandatory detention under INA § 236(c).False TestimonyGiving false testimony with the intent of obtaining an immigration benefit precludes a finding of GMC even if the information provided in the false testimony is not material. “Testimony” must be oral and must have been made under oath. False statements in writing, such as false information provided in an application or fraudulent documents submitted with an application do not constitute “false testimony” for the purposes of this basis for denying GMC. Note however, that failure to truthfully answer the questions on the Form N-400 when combined with the fact that an applicant is usually asked to reaffirm his or her answers under oath during the naturalization interview can constitute false testimony.Providing a false written statements and/or fraudulent documents can result in a finding of a lack of GMC under the catchall provisions. For example, an individual provides a forged document to the government in conjunction with application for naturalization. Although the document does not meet the requirements for “false testimony,” the fact of having submitted a forged document to the government could qualify as an “unlawful act” because it would be a violation of 18 USC 1503 and/or 18 USC 1519, among others. A similar outcome could result from the submission of a false affidavit or declaration made under penalty of perjury, which could qualify as an “unlawful act” as a violation of 18 USC 1623. For an in-depth and engaging discussion of how statements, both written and oral, can result in the inability to show GMC, see Etape v. Napolitano, 664 F.Supp.2d 498 (D. MD 2009).Be aware that not all incidents of false testimony need be fatal to a finding of GMC. Where an individual gives false testimony under oath for reasons other than obtaining an immigration benefit, such statements may not undermine a showing of GMC. False statements or misrepresentations made because of “faulty memory, misinterpretation of a question, or innocent mistake,” United States v. Hovsepian, 422 F.3d 883, 887 (9th Cir. 2005), or as a result of “embarrassment, fear, or a desire for privacy,” Kungys v. United States, 485 U.S. 759 (1988), should not preclude a showing of GMC. See also, Lawson, 795 F.Supp.2d at 294-295. False testimony raises another crucial issue for naturalization, separate from GMC. In a naturalization case, aside from showing GMC, an applicant must also demonstrate that he was lawfully admitted to the United States for permanent residence under INA 318. Any fraud, misrepresentation, or material omission in the individual’s adjustment of status or immigrant visa process will not only prevent a person from naturalizing, it can also lead to recission of permanent residence under INA 246, if discovered within 5 years of admission, and to removal proceedings at any time. Even after naturalization, an individual can be subject to denaturalization and removal proceedings because of fraud, misrepresentation or material omission. Naturalization may be revoked pursuant to INA 340(a) where it was procured by concealment of a material fact or willful misrepresentation.ProstitutionIf a person has engaged in prostitution, procured or attempted to procure or to import prostitutes or receives the proceeds of prostitution, or was engaged in any other type of commercialized vice during the statutory period, he will be precluded from showing GMC. This section does not require a conviction and applies even if the prostitution occurs in a jurisdiction where it is legal.Prostitution is defined in the Department of State regulations as “promiscuous sexual intercourse for hire.” 22 CFR § 40.24(b). However, one incident of prostitution does not constitute “engaging in” prostitution for the purpose of this bar to GMC. See Matter of T, 6 I&N Dec. 474, 477 (BIA 1955). Rather, to “ ‘engage in’ means to carry on over a period of time a type of conduct, a pattern of behavior, or form of activity in which sale of the body for carnal intercourse is an integral part . . . .” Id. Similarly, in Matter of Gonazalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), the BIA agreed with the respondent in that case that “ ‘procure’ does not extend to an act of solicitation of a prostitute on one's own behalf.” The PM cites to and indicates its agreement with these two cases.Keep in mind that prostitution is generally considered a CIMT, see Matter of W, 4 I&N Dec. 401 (Cen. Office 1951), but a single conviction for prostitution will most likey fall within the petty offense exception in INA § 212(a)(2)(A)(ii)(II), and thus will not trigger the CIMT bar to GMC. Obviously, if a client has a prostitution conviction, you should check to make sure the petty offense exception applies. More than one conviction, however, will bring the person within the CIMT bar to GMC, if during the statutory period, and will also make the person deportable under INA § 237(a)(2)(ii), inadmissible under INA § 212(a)(2)(A)(i), and subject to mandatory detention under INA § 236(c). Please note that whether simple prostitution is a CIMT is currently being contested before the Board of Immigration Appeals, and AILA has submitted an amicus brief arguing that “the BIA should hold that simple prostitution is not categorically a crime involving moral turpitude for the sex worker or client.”A victim of human trafficking who had T nonimmigrant status and adjusted to LPR status, would presumably not have to be concerned about the prostitution bar to showing GMC, because his or her involvement with prostitution would likely have been over for at least 8 years, given that in order to qualify for LPR, one has to have been in T status for 3 years, and then to qualify for naturalization, one must be in LPR status for at least 5 years. However, any arrests and/or convictions must be disclosed in the naturalization process, and extenuating circumstances and equities will need to be presented to convince an officer to exercise discretion in the applicant’s favor.Habitual DrunkardA person who is a “habitual drunkard” during the statutory period cannot show GMC. The PM directs officers to examine various documents that may reveal habitual drunkenness including “divorce decrees, employment records, an arrest records.” PM Ch.5J. Other factors that officers may look to in determining whether someone is a habitual drunkard include “termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence.” Id.It is not clear how many convictions for or arrests for driving under the influence (DUI) would trigger a finding that someone is a habitual drunkard. As a general matter, a single conviction for a simple DUI (or driving while intoxicated (DWI), without any aggravating factors, should not result in a negative determination regarding GMC. See, e.g., Rangel v. Barrows, No. 07 Civ. 279(RAS), 2008 WL 4441974, at *3 (E.D.Tex. Sept. 25, 2008) (“[A] single DWI conviction is insufficient to preclude an applicant from establishing good moral character.”); Ragoonanan v. USCIS, No. 07 Civ. 3461(PAM), 2007 WL 4465208, at *4 (D.Minn. Dec. 18, 2007) (“[A] single DWI conviction, standing alone, does not statutorily bar a naturalization applicant from establishing good moral character when he has been candid about the conviction.”). Even multiple DUI convictions have not resulted in a negative determination of GMC. See, e.g., Yaqub v. Gonzales, No. 05 Civ. 170(TSH), 2006 WL 1582440, *5 (S.D.Ohio June 6, 2006) (holding that two DUI convictions do not preclude finding of good moral character, especially where applicant is “forthright”); Puciaty v. Dep't of Justice, 125 F.Supp.2d 1035, 1039 (D.Haw.2000) (holding that two DUI arrests do not preclude finding of good moral character).Moreover, simple DUI should not constitute a CIMT or a “crime of violence” aggravated felony. A single DUI conviction without aggravating factors, for example under a statute that does not include any elements relating to intent, such as an intent to harm, would not qualify as a CIMT, nor would multiple convictions for simple DUI. See e.g., Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (finding that multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude) (citing Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996)). After the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), simple DUI convictions do not generally qualify as “crime of violence” aggravated felonies. Of course, each statute must examined to ensure the analysis in Leocal applies; in that case the key was the absence of a mental state that would give rise to a finding of moral turpitude.However, if a client does have even just one DUI conviction, you have to be prepared to support the argument that a single DUI should not preclude demonstration of GMC, especially in light of the number of cases that go to the BIA and federal courts on this issue and reports coming out of field offices.Bars that apply absent “extenuating circumstances”For the following three conditional bars, which include the catchall of “unlawful acts,” unless the applicant can show extenuating circumstances, he will be found to lack GMC if any of the below occurred during the statutory period. Keep in mind that with regard to these conditional bars, the applicant is effectively entitled to, and in all circumstances should, show extenuating circumstances. In general, extenuating circumstances must precede or be contemporaneous with the commission of the offense – equities that arise after the commission of the offense will not be viewed as “extenuating circumstances” by DHS. See PM, Ch.2E.

Willful Failure to Support Dependents

Extramarital Affairs which tended to destroy a marriage

Unlawful Act

The “unlawful acts” bar provides a broad spectrum of issues. A person is precluded from showing GMC if, during the statutory period and in the absence of extenuating circumstances, he has committed “unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of Sec.316.10(b)(1) or (2).” According to the PM, an “ ‘unlawful act’ includes any act that is against the law, illegal or against moral or ethical standards of the community. The fact that an act is a crime makes any commission thereof an unlawful act.” PM Ch.5E. The PM goes over the examples of unlawful voting, false claim to U.S. citizenship for voting, and failure to pay taxes. Here we review common issues including traffic tickets, domestic disputes, and pending cases.

In 2006, USCIS confirmed through AILA liaison that a “single traffic ticket that does not result in a disqualifying arrest or conviction under the INA or a non-criminal moving violation, standing alone, will not be the sole basis for a denial of naturalization for lack of the requisite moral character.” You should review traffic tickets with your client and if they have a series of tickets, ask them to explain, because if they have a large number of tickets, this may lead to a question of whether an adjudicator will see your client as failing to live up to community standards in having a repeated series of unlawful acts.

Some clients may come to you with a history of domestic disputes. Be sure to analyze carefully any contact your client may have had with the criminal justice system or family court, relating to any domestic altercations. Determine whether the client has had arrests, convictions, or protective orders relating to a domestic incident. Domestic violence can result in convictions that count as CIMTs and/or aggravated felonies, and can trigger deportability under INA 237(a)(2)(E).Where a client has been arrested but no charges resulted from the arrest, the arrest must still be disclosed on the Form N-400, because failure to disclose an arrest can constitute false testimony in the context of a naturalization interview. The arrest itself will likely trigger an inquiry into the “unlawful act” that led to the arrest, thus the client must be prepared to explain briefly what happened with the arrest in a way that will not lead to an admission that meets the definition of a “conviction” pursuant to INA § 101(a)(48) (Matter of K-, 7 I&N Dec. 594 (BIA 1957) mandates the specific procedure that a government official must follow in order to elicit an admission that may qualify as a conviction).If a client has a pending case, even for something minor like a disorderly conduct or a simple DUI with no aggravating factors, it would be best to wait for the case to be resolved before applying for naturalization, or try to get the case resolved before the interview. (Of course, even minor charges require analysis of the statute at issue to ensure what might at first appear minor is something more complex.) If it is not possible to reach resolution before an interview, when facing a charge that you have determined does not trigger any issues, such as a simple DUI (and there are no other problematic cases in your client’s history), you should be prepared to argue that even if a conviction were to result, your client can still meet his or her burden of establishing good moral character, especially in light of the fact that “we do not require perfection in our new citizens.” Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961).Catchall ProvisionFinally, even if an individual does not fall within one of the permanent or conditional bars to establishing GMC, INA § 101(f) provides that this does not “preclude a finding that for other reasons such person is or was not of good moral character.” This is where an adjudicator can exercise discretion in assessing GMC.As noted above, adjudicators are required to consider the totality of the circumstances and engage in a balancing of factors in making a determination of GMC. Thus it is our job as advocates to present as complete a picture of a client as possible where GMC is likely to be an issue. A careful exploration of a client’s past and present will yield much useful information that can be used to present extenuating circumstances, reformation of character, and to demonstrate that the client has GMC sufficient to merit a grant of citizenship. Keep in mind that GMC issues overlap with other issues and that if you get a red flag while going over GMC issues, your client might have much more significant problems and face risks including removal and mandatory detention. Analysis of GMC will help you determine whether the client should or should not risk applying for naturalization, and in managing a client’s expectation as to how much of a fight will be necessary to show GMC, and in what venues (USCIS, AAO, federal court) that fight might need to take place.

Charles Kuck, ABIL PresidentMusings on ImmigrationSince the inception of the Fraud Detection and National Security (FDNS) Unit at USCIS in 2007, the watchword as been that there is actually fraud in every immigration case, sometimes USCIS just has to look really hard to find it. Egged on by current anti-immigrant shill Senator Chuck Grassley from Iowa, "whistle-blowers" at the California Service Center have been feeding Senator Grassley "information" about being "forced" to approve cases they do not think should be approved. Of course, there is no evidence that any of this actually occurred, or which cases were supposedly approved that should not have been.A factual basis notwithstanding, the USCIS has been on a witch-hunt on H-1B petitions for several years now. First it began with a huge new crackdown on Requests for Evidence on filed cases, which for years were approved without question, but which now are routinely denied. As noted in one report: " For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to 18 percent by FY 2007, to a high of 35 percent in FY 2009." It was followed by the creation of "site visits" by temporary or contracted employees of USCIS to the actual workplace of each H-1B workers, exceeding more than 30,000 site visits annually, With only 1 percent of these audits leading to a fraud investigation. A fraud rate far below that of virtually any other government program. All of these efforts to root out fraud point to zero indication of systemic fraud. I am not saying we should tolerate fraud. What I am saying is that the level of fraud that USCIS and Senator Grassley think exists, simply does not empirically exist.Which leads us to today. USCIS released, pursuant to a FOIA by attorney David Gluckman, a June 3, 2013 memo labelled, "Revised H-1B Anti-Fraud Operational Guidance." This guidance memo has redacted the sentence on the first page which would give insight into exactly how much fraud USCIS has discovered in the five years it has been conducting H-1B benefit fraud analysis. How convenient. The memo then talks about the additional "training tools" and compliance review programs that "leverage advancements in technology" to discover and unearth fraud. Frankly, it sounds a lot like what the folks over at the NSA have been doing of late.The memo points to four areas in which USCIS has made "operational enhancements" since October 2008.

ASVVP (Administrative Site Visit and Verification Program). The basic conclusion here is that, while it is true USCIS has not found any real systemic fraud, and these site visits are not predicated on fraud, they help USCIS develop "possible fraud indicators" without indicating an example of what those might be.